Penn State counsel's role in Sandusky inquiry called into question

By Jeremy Roebuck, Inquirer Staff Writer

Three top Pennsylvania State University administrators were each posed a question from prosecutors when they testified separately last year before the grand jury investigating Jerry Sandusky:

Do you have counsel with you today?

Then-university president Graham B. Spanier, athletic director Tim Curley, and vice president Gary Schultz each offered the same answer: Yes, Cynthia Baldwin, the university's general counsel.

But Baldwin has since maintained that she represented none of them and instead sat in on the proceedings on behalf of the university.

Those conflicting views have complicated the criminal cases against Schultz and Curley, who are charged with lying to the grand jury, and have called into question Baldwin's role in managing the most significant crisis in Penn State history.

A review of court filings, interviews with sources close to the investigation, and the findings of the 267-page report by former FBI Director Louis Freeh portray Baldwin as more preoccupied with protecting administrators who would later be implicated in a cover-up than with serving the interests of the university for which she worked.

And now, facing mounting pressure from the criminal investigation, Spanier has turned on the woman he once trusted for legal advice.

"I was guided by and followed instructions from the university's general counsel," the former president said in a letter sent Monday to the university board of trustees. "She told me very little about how she was handling the grand jury investigation."

Baldwin's lawyer, Charles De Monaco, shot back this week, balking at the administrators' attempts to shift blame.

A former state Supreme Court justice who once served as president of Penn State's board of trustees, Baldwin became the university's top lawyer in 2010 just as the Sandusky investigation began to reach its climax. And throughout, De Monaco argued, "she upheld her duties to the university and its agents."

She has declined to comment since resigning last month, days after a Centre County jury convicted the former assistant football coach of 45 counts of child sex abuse.

She "has chosen to maintain confidentiality and to uphold her ethical obligations to her client, the university," De Monaco said.

He singled her out in his report, alleging she worked alongside Spanier, Curley, and Schultz to hide the gravity of the Sandusky investigation from trustees.

As general counsel, her role was to inform the trustees on legal matters that could affect the university. But she failed to report that state investigators had been eyeing Sandusky for months or that a grand jury had interviewed Spanier, Curley, Schultz, and then-head football coach Joe Paterno until May 2011, Freeh said.

Once she did, she never mentioned that detectives subpoenaed reams of university records, including e-mails from all four men dating to 1997, a year before the first accusations against Sandusky surfaced.

"Several trustees described [her] briefing as a three- to five-minute, 'Oh, by the way' presentation at the end of the day," Freeh wrote. "A common perception was that this was not an important issue for the university."

When Sandusky, Curley, and Schultz were arrested in November, Baldwin resisted calls from some trustees for an internal investigation, Freeh said.

"If we do this, we will never get rid of this group in some shape or form," she advised Spanier in an e-mail cited in Freeh's report.

De Monaco maintained this week that Freeh's depiction of Baldwin contained several inaccuracies. He refused to point to any specific errors.

But Spanier - whom Freeh portrayed as acting in concert with Baldwin in hiding information - insisted that she kept him as much in the dark as she did the trustees. (Though he offered no explanation for why he, as the university's chief executive and Baldwin's boss, did not seek more information from her.)

"She [told] me on at least three occasions that this was the third or fourth grand jury on this matter, that there appeared to be no issue for the university, and that the attorney general did not seem to have any evidence to suggest that something happened involving Penn State," he said in his letter to trustees.

Questions have also been raised about Baldwin’s presence in the grand jury room as Curley and Schultz testified in January 2011.

Though each claimed her as their lawyer, Baldwin has since said she attended the proceedings as a representative of the university. She told Freeh's investigators she had urged both men to hire attorneys on their own.

Still, Baldwin did not correct either when they told prosecutors during their testimony that she was their lawyer, according to court transcripts.

That may have compromised their legal rights.

If Baldwin was there on behalf of the administrators, she violated ethical requirements that bar lawyers from representing clients whose interests diverge, legal experts said. If she was there representing Penn State, her presence is even more questionable, they said.

Typically, grand jury proceedings are conducted in secrecy and lawyers are usually allowed to accompany only clients scheduled to testify.

"If she was representing the university, she shouldn't have been in the grand jury room at all," former Pennsylvania Attorney General Walter Cohen said.

Spanier, too, has alleged that Baldwin was less than forthcoming when it came time for his own turn in the grand jury room three months later. In his letter to trustees, he maintained that she never told him he had been subpoenaed.

"She told me I was going voluntarily. . . . I had no preparation or understanding of the context," he wrote. He added: "As I was being sworn in . . . much to my surprise, she handed over to the judge a thumb drive containing my entire history of e-mails back to 2004."

In his report this month, Freeh offered his own explanation for Baldwin's alleged missteps: As a civil attorney, she had limited experience with grand jury matters and large-scale criminal investigations.

Before coming to Penn State, she had worked primarily as a partner in the Pittsburgh office of Duane Morris and served stints on Allegheny County Court and as an interim state Supreme Court appointee from 2006 to 2008.

When the Sandusky investigation came across her desk, Baldwin never formally asked outside experts for help, Freeh said.

But De Monaco disputed that assertion, too. His client consulted with several outside civil and criminal lawyers throughout her handling of the case, he said.

"Those who know Cynthia Baldwin know the stories about her are inaccurate," he said. "No one should use her silence to speculate and make statements that serve to ruin her long and stellar legal reputation."

This story has been changed to correct the attribution in two paragraphs.